Established in 2009 Under the Authority of North Carolina General Statute 15A-404

By Christopher D. Kirkpatrick and April Bethea
ckirkpatrick@charlotteobser.com and abethea@charlotteobserver.com

Posted: Saturday, Sep. 19, 2009

DA: Man who gave chase after home invasion fired gun in self-defense.

Mecklenburg District Attorney Peter Gilchrist said Friday he won’t charge 76-year-old C.L. McClure in the shooting death of a 15-year-old who police said was part of a home invasion robbery at McClure’s northeast Charlotte house.

Gilchrist told the Observer there was insufficient evidence to refute McClure’s assertion that he was acting in self-defense Aug. 22 when he shot and killed Marcus Fluker.

“It appears from all the credible evidence that Mr. McClure feared for his life,” Gilchrist said in a statement.

McClure told police and prosecutors that after the midday home invasion at his Grier Road house he jumped into his van and drove to a nearby street where he thought the robbers were headed on foot.

He said he intended to shoot out the tires of their getaway car to slow them for police. He found no car, McClure told police, but spotted the group running toward his van from a wooded area.

As they approached, McClure said, he feared Fluker might use an automatic weapon McClure had seen one youth holding during the robbery. McClure then fired his .22-caliber gun from the passenger window, hitting Fluker. Police found the teen dead not far away on Ginger Lane, though they found no gun nearby.

The death highlighted issues around the rights of homeowners to protect themselves and the limits of those rights outside the home.

When a homeowner shoots an intruder, N.C. law allows prosecutors to rule it justified. But McClure drove after the robbers, plunging the case into a gray area, legal experts told the Observer.

“We make decisions based on the facts and not community opinion,” Gilchrist told the Observer.

In the statement, Gilchrist said: “His idea to find the vehicle and try to delay the escape of those who invaded his home did not make him the aggressor nor did that take away his right of self-defense. Mr. McClure believed that his life was in danger and fired in self-defense.”

McClure didn’t return a call Friday and has said he doesn’t want to talk about the incident.

Felicia Fluker, the youth’s mother, couldn’t be reached Friday night. She told the Observer after the shooting that her son, an Independence High freshman, was a good kid who got caught up that day with a bad crowd.

“I hate what happened,” she said. “(McClure) could’ve just called police.”

Three other teens were arrested and charged with second-degree burglary and robbery with a dangerous weapon. Police have identified them as Joseph Graves, 17; Matthew Everett Morgan, 17; and Tahjaue Wiley, 18.

Three defense attorneys who read Gilchrist’s statement on the McClure case said they felt the prosecutor’s decision not to file charges was fair and showed the homeowner had feared for his life.

“When a notorious incident like this takes place people want to think they know all the facts, but they usually don’t,” said Tony Scheer, a Charlotte criminal defense attorney and former prosecutor. “When police and prosecutors decide that they don’t have enough evidence to charge somebody I would hope that the community could accept that they’re trying to do their job in good faith.”

Still, Scheer and other attorneys said the prosecutors’ decision not to file charges should not encourage others to take the law into their own hands.

“I don’t think that’s the message that’s intended here, and hopefully that’s not the message people will take from it,” said Terry Sherrill, a defense attorney and former district and superior court judge.

Prosecutors said Friday that McClure’s wife suffered a heart attack hours after the home invasion and shooting. She is recovering.

The robbers had held her at gunpoint upstairs and bound her husband, who was downstairs, with duct tape. Then they ransacked the home, making off with jewelry, a wallet and two guns.

After they left, McClure broke free, grabbed a gun, and got into his van after watching the thieves head into woods across the street.

According to Gilchrist’s statement: “When McClure found the young men after the robbery, they ran toward his car and he fired a shot in the air to keep them away from him and his auto. But they kept running toward him, some in front and some in back of his car.”

When Fluker passed the vehicle, he began to turn toward McClure. His motions convinced McClure he was about to be shot, Gilchrist stated. McClure fired at Fluker but did not know if he had hit him.

Gilchrist said McClure was the only witness to the shooting and that the physical evidence corroborated what the homeowner told detectives. The DA’s office also said it was clear Fluker was one of the people involved in the home invasion robbery.

“It is the burden of the state in a criminal case to prove beyond a reasonable doubt that a charged individual did not act in self-defense,” Gilchrist said in his statement. “The state cannot meet that burden in this case as it appears from all the credible evidence that Mr. McClure feared for his life.”

In a recent similar case, police say Charlotte cab driver Albeno Maywal shot and killed 17-year-old robbery suspect Renaldo Smith this month. Police and prosecutors are still reviewing the case. Smith is the son of former NFL Atlanta Falcon player Reggie Smith. Staff writer Adam Bell contributed.